December 3, 2013

Though lacking time to fully consume all the opinions in today's lengthy Sixth Circuit en banc ruling in Blewett (basics here), I did this morning find time to read the discussions of Eighth Amendment issues because they are relatively brief and cursory. And, as the the title of this post reveals, I believe that the majority's treatment of the Eighth Amendment is wrong and contradicts clear Supreme Court precedent concerning the evolving nature of the Constitution's prohibition of cruel and unusual punishments.

Here are the key passages from the majority's (far too brief) discussion of Eighth Amendment issues that have me all worked up (with cites left out but emphasis in the original):

Even if the Fair Sentencing Act applies only to individuals sentenced after its effective date and even if § 3582(c)(2) does not convert the Act into a retroactive change to these mandatory minimums, the Blewetts claim that the Constitution’s equal-protection and cruel-and-unusual-punishment principles give them relief. Long before the passage of the Fair Sentencing Act, our court and others repeatedly rejected similar constitutional challenges to the crack and powder cocaine sentencing disparities....

Congress’s mitigation of the crack and powder disparities does not weaken these precedents; it strengthens them. Besides, the Blewetts cite no cases that call these conclusions into question....

Turning to another part of the Constitution, the Blewetts and Judge Merritt (with support from Judge Moore’s opinion) contend that the Eighth Amendment prohibits the continued imprisonment of a defendant sentenced under the old mandatory minimum laws. Yet they cannot contend that their 10-year sentences were cruel and unusual when imposed. After all, the Supreme Court has upheld a mandatory minimum of life without parole for possession of 672 grams of cocaine without intent to distribute. Harmelin v. Michigan, 501 U.S. 957 (1991). The Blewetts’ crimes are less serious in one respect (they possessed less cocaine), but more serious in two others (they possessed with intent to distribute and they had prior felony drug convictions). Harmelin precludes the conclusion that the Blewetts’ much shorter mandatory minimum sentences were cruel and unusual.

The Blewetts persist that their sentences became cruel and unusual when Congress passed the Fair Sentencing Act. But the Eighth Amendment is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted, a theory that would have the perverse effect of discouraging lawmakers from ever lowering criminal sentences. Withholding the benefits of a change from previously sentenced defendants at a any rate is not “unusual”; it is the general practice in federal sentencing, as Dorsey and § 109 confirm.

With all due respect to the Sixth Circuit and the author of this opinion (whom I know well and respect greatly), these passages seem deeply misguided in light of the evolving nature of the Eighth Amendment and the importance of objective factors in assessing the Amendment's evolution that have been repeatedly stressed by the Supreme Court.

To begin, it is just flat out wrong that Congress's decision to repeal the Blewetts sentences makes stronger prior rejections of their Eighth Amendment claims. The Supreme Court's Eighth Amendment ruling in Atkins stressed that legislative decisions by states to repeal the death penalty for mentally retarded defendants showed that society's view had evolved so that in 2002 it was unconstitutional to execute the mentally retarded even though the Court had held in 1989 in Penry that the Eighth Amendment did not preclude such executions. In other words, there is clear Supreme Court precedent demonstrating legislative repeal(s) of a punishment makes a defendant's Eighth Amendment claims stronger, not weaker.

In addition, the question here (as it was in Atkins and all other Eighth Amendment cases) is not just "when" a sentence might have become unconstitutional, but rather whether an extreme punishment is cruel and unusual now. Thus, it is misguided to assert that the Blewetts claim "that their sentences became cruel and unusual when Congress passed the Fair Sentencing Act" back in 2010. Rather, the issue needing to be resolved under the Eighth Amendment is whether now, in December 2013, after Congress passed the FSA in 2010 repealing the sentences being served by the Blewetts, AND after the US Sentencing Commission made lower guidelines retroactively available to tens of thousands of more serious crack offenders (and Congress approved that decision), AND after thousands of judges have lowered the sentences of thousands of more serious crack offenders by an average of more than two years, AND after the US Attorney General has given major speeches and issued new policies assailing the application of mandatory minimums in these kinds of cases, whether it is nowcruel and unusual that only less serious crack offenders like the Blewetts do not even get a chance to ask a judge to have their sentences lowered.

My view on these issues is, of course, deeply biased by my involvement in this case in which I authored a brief for NACDL explaining why I think the Blewetts' sentences are unconstitutional under the Eighth Amendment. The reason I come to this view is because I take very seriously the Supreme Court's frequent and repeated admonition that Eighth Amendment's prohibition of cruel and unusual punishments evolves. I fully understand those who disagree with this jurisprudential approach to the Eighth Amendment and who advocate that the Supreme Court no longer analyze and apply the Amendment this way. But, as an inferior court, the Sixth Circuit has to follow even parts of SCOTUS precedent it does not like. In this case, however, it seems the Sixth Circuit was content just to ignore that precedent rather than consider it honestly and seriously.

Comments

I have a philosophical question for you, Doug: if the 8A is evolving can it evolve towards harsher as well as more lenient penalties? Or is it your view that weaker criminal sentences always pass constitutional muster but harsher ones may or may not?

Posted by: Daniel | Dec 3, 2013 1:36:25 PM

As far as I can tell the SCOTUS reasoning about the 8th amendment evolving is really only a gloss on the desire of certain justices to do away with execution and possibly LWOP sentences. Until SCOTUS pronounces the 8th amendment evolving in some other context I would say there is no precedent to contradict by upholding a sentence, no matter how (even unreasonably) harsh. The 8th amendment forbids cruel and unusual, not unreasonable, punishments.

Posted by: Soronel Haetir | Dec 3, 2013 2:22:44 PM

Doug, you are completely correct and the Blewetts opinion completely misses the boat on current SCOTUS Eighth Amendment jurisprudence. Harmelin did not set the bar forever.

The important thing to take away from Harmelin is Kennedy's three step test in his concurring opinion, which has now been clearly established as the proper analytical model in Graham.

bruce

Posted by: bruce cunningham | Dec 3, 2013 2:49:00 PM

Daniel: I suspect that Harmelin's LWOP punishment for a drug possession crime would have been considered by the Supreme Court "cruel and unusual" circa 1789 and/or 1891 and/or 1941, and thus an evolution toward harshness plainly is refelcted in how the Amendment is applied today. Similarly, I think a lot of current punishments on sex offenders would have been thought unconstitution during the Founding era.

That said, because the Eighth Amendment is about individual rights and restricting governments from using extreme and excessive sanctions without having sufficient justifications for these sanctions, I do think it often the case that Eighth Amendment rights will tend to expand rather than contract via SCOTUS and lower court interpretations. But, of course, the same is true for all the other rights protected in the Bill of Rights: over time, First Amendment, Second Amendment, Fourth Amendment, Fifth Amendment and Sixth Amendment rights have all tended to expand and be interpreted to protect more and more people from more and more government over-reaches. Indeed, I thought that was the whole point of having the Bill of Rights added to the Constitution, wasn't it?

Posted by: Doug B. | Dec 3, 2013 3:27:46 PM

A lengthy prison sentence for a nonviolent offense might seem cruel in some cases but I think it's impossible to argue that it's unusual. The Constitution only bars "cruel AND unusual" punishments. I might wish the Constitution said otherwise, but I think the language was designed to prevent hanging someone by their toe nails or other forms of torturing them.

Posted by: Thinkaboutit | Dec 3, 2013 3:59:23 PM

There is no SCOTUS precedent holding or even vaguely suggesting that a ten year sentence for an adult convicted of a hard-drugs offense is anywhere near unconstitutional.

I will put my money where my mouth is, and bet $200 here and now that either the SCOTUS -- whose precedents have supposedly been brazenly ignored -- will either not take this case or, if they take it, will affirm the en banc court's judgment.

We all know that SCOTUS is really not at all pleased when it believes that its cases get shunted into the corner by inferior courts. So those who disagree with me should be eager to take me up. Anyone?

Posted by: Bill Otis | Dec 3, 2013 4:50:17 PM

Doug --

Do you think that the Savings Statute, Section 109, is unconstitutional? It seems to me that your analysis commits you to that result, because THE WHOLE POINT of the Savings Statute is to freeze prior sentences as they were given. It is thus the antithesis of your view of Eighth Amendment "evolution."

Posted by: Bill Otis | Dec 3, 2013 5:30:22 PM

better watch out bill! keep talking like this!

"Do you think that the Savings Statute, Section 109, is unconstitutional? It seems to me that your analysis commits you to that result, because THE WHOLE POINT of the Savings Statute is to freeze prior sentences as they were given."

And people will start calling you a sex offender lover! since based on it. 90% of modern sex crimes law is unconstitutional.

Posted by: rodsmith | Dec 3, 2013 7:01:37 PM

Actually, Bill, I think the whole point of the Savings Statute, Section 109, was to freeze prior CONVICTIONS and the liability which attached (which, of course, the common law presumed to be changed with any statutory changes of any sort). Moreover, the textualist in me does not think the Savings Statute even has any applicability, because it concerns "The repeal of any statute," whereas the FSA only reformed/repealed the triggers for certain sentences, it did not formally repeal anything.

Flipping the issue, do you think the existance of the Savings Statute means that the Eighth Amendment cannot evolve, or only that you think that anything Congress does should not be part of the assessment of the evolution (contrary, of course, to binding SCOTUS precedent).

Please understand, I 100% understand --- and largely agree with --- criticisms of the Eighth Amendment jurisprudence that looks principally at legislation as evidence of society evolution for informing Eighth Amendment doctrine. But that is established SCOTUS jurisprudence that the Sixth Circuit must follow and not merely ignore as misguided. Ergo my complaints.

You may be right, Bill, that a majority of current Justices do not like the evolving nature of the 8th Amendment based in legislative reforms (indeed, fully embracing this notion makes the rulings in Kennedy and Graham and Miller harder to justify, and there may be folks on both the left and right of the current court eager to also avoid dealing with Atkins as a key precedent). But unless and until the key part of Atkins are repealed or disavowed, citing Harmelin to resolve the Blewetts claim is now not much more compelling then citing Penry to reject a modern Atkins claim.

Posted by: Doug B. | Dec 3, 2013 7:18:48 PM

Prof. Berman. They hanged sex offenders in the colonial era. They hanged the guy who had carnal knowledge of farm animals, and in a tragic turn, executed the animal victims as well, perhaps for not resisting enough.

The evolution of Eighth Amendment jurisprudence is in one direction, toward leniency for the lawyer client, the criminal, and toward cold hearted lack of care or concern about their victims. This trend is also true if not more developed in other left wing liberal democracies. So one suspects that the real aim is to generate government make work jobs, with Eighth Amendment evolution and other constitutional texts in Europe serving as pretexts.

I respectfully suggest that folks are confusing questions of policy and personal beliefs with adherence to established federal constitutional law from the Supreme Court, which the lower courts are obligated to follow. That is what has Doug worked up, justifiably.

The opinion ends with comments that Blewetts should look to the Prsident (clemency) or the legislature (retroactive modification of the statute) to get relief.

We have a unique legal system of a constitutional democracy with a primary characteristic of judicial review. As Kennedy said in Graham, "in accordance with the constitutional design, it is the exclusive role of the judiciary to interpret the constitution" Or words very close to that.

Justice Kennedy's three step test of first inquiring whether there is an inference of gross disproportionality, if so, then engage in an interjurisdictional comparison and an intrajurisdictional comparison, is the law. Even as recently as 2003 in Ewing, it was unclear. Now it is clear. but not to the Sixth Circuit.

bruce

Posted by: bruce cunningham | Dec 3, 2013 11:07:58 PM

bruce --

I think the SCOTUS is in a better position than you, I, or anyone else to determine whether what we have here is a lower court's refusing to follow its precedent. If your view of it and Doug's is correct, the Court doesn't (and wouldn't) even require briefing on the merits. It could do a summary GVR.

I have an open bet that SCOTUS will not do that, will not take the case at all, and, if it does, will affirm today's judgment. If you take the bet and win, I'll be happy to be sending the money to a Carolina man.

Are we on?

Posted by: Bill Otis | Dec 4, 2013 12:06:59 AM

"I respectfully suggest that folks are confusing questions of policy and personal beliefs with adherence to established federal constitutional law from the Supreme Court"

The difficulty with the 8A is that by definition it asks judges to enforce a standard and not a rule, a standard that can only be informed by policy and personal belief. To argue that out of the 8A is to introduce a false dichotomy that bears no reflection on the actual words of the constitution.

Doug is upset because the way that he would apply that standard to the facts of the case are different than what the en banc court did. I agree with Bill, though, that it is highly unlikely the Sixth has strayed so far from the mainstream that that they will get overturned.

Posted by: Daniel | Dec 4, 2013 12:42:48 AM

"We have a unique legal system of a constitutional democracy with a primary characteristic of judicial review."

Bill, we both know that there are many reasons why the Supreme Court decides not to include a case in the 100 or so of the 8,000 or so petitions for cert. I admire your intelligence and experience and read everything you say carefully. But, on this one we will simply disagree. And if cert is denied, I will say "You were right, the court denied cert."

As an aside, while I was attended Carolina as an undergrad, I received my JD from the University of Virginia. I fully enjoyed my time at both schools.

bruce

Posted by: bruce cunningham | Dec 4, 2013 8:27:25 AM

Daniel's comments are spot on, and I agree that the 8 A ruling in Blewett is not out of the modern mainstream, and thus I also predict/fear that cert will not be granted in this matter. That said, I do not think either the Framers (or anyone who believes the Eighth Amendment could and should serve as a serious check on extreme punishments) would/should be content with a modern 8 A mainstream in which only the very worst intentional killers (and, lately, a few of the very worst juvenile offenders) get their punishments seriously scrutinized.

Posted by: Doug B. | Dec 4, 2013 6:27:55 PM

Doug --

"That said, I do not think either the Framers (or anyone who believes the Eighth Amendment could and should serve as a serious check on extreme punishments) would/should be content with a modern 8 A mainstream in which only the very worst intentional killers (and, lately, a few of the very worst juvenile offenders) get their punishments seriously scrutinized."

Three points if I might. First, this sentence WAS seriously scrutinized, to say the very least. I doubt that one in a thousand federal defendants gets rehearing en banc.

Second, ten years for and adult defendant in a hard-drugs case simply is not "extreme." These people make choices, Doug. And in the massive majority of cases, you don't get ten years EVEN IF IT IS hard drugs.

Third, it's not merely that the result here is not out of the mainstream. It's that any OTHER result would be out of the mainstream, as the majority shows by its citation to the opinions of every circuit in the country.

Posted by: Bill Otis | Dec 4, 2013 6:45:46 PM

bruce --

Gads, if I'd known you were half Cavalier, I would only have offered $50.

Cheers.

Posted by: Bill Otis | Dec 4, 2013 6:49:17 PM

Three responses, Bill, if I might:

First, this sentence WAS NOT seriously scrutinized on Eighth Amendment grounds, as 98% of the discussion in all the opinions concerns other matters.

Second, I think spending ten years in prison for selling a small amount of an illegal product to a willing buyer --- after every federal official is on the record saying this is unfair and excessive --- should be viewed as extreme in a country conceived in liberty and truly committed to the principles of life, liberty and the pursuit of happiness (not to mention capitalism). I know people "make choices," Bill. The issue is whether a choice to engage in an arguably victimless and indisputably small commercial transaction --- after Congress, the Prez, the AG all now say this should NOT require any mandatory prison time --- can and should still demand that the Blewetts spend a full decade in federal prison.

Third, I concur that any 8 A ruling that provide relief to anyone other than the worse killers and worst kids is out of the mainstream. But I wonder if you think it a healthy and Framer-respectful 8 A mainstream that on the worst killers and worst kids have any chance to have their 8 A claims taken seriously.

Posted by: Doug B. | Dec 5, 2013 4:22:23 AM

Doug --

To respond:

1. "First, this sentence WAS NOT seriously scrutinized on Eighth Amendment grounds, as 98% of the discussion in all the opinions concerns other matters."

That's entirely because the defendant and the panel majority RAISED other matters, knowing that their 8A argument was a dead duck. The 8A got just as much analysis as the parties wanted and the state of precedent demands. And you're right, that wasn't a whole lot. If the panel had not gone out on a frolic, this case never gets to en banc.

2. "Second, I think spending ten years in prison for selling a small amount of an illegal product to a willing buyer --- after every federal official is on the record saying this is unfair and excessive --- should be viewed as extreme in a country conceived in liberty and truly committed to the principles of life, liberty and the pursuit of happiness (not to mention capitalism)."

I do not agree that "every" federal official has said this sort of sentence for trafficking hard drugs is unfair and excessive. Last I looked, for example, the Speaker and the majority leader of the House are federal officials, Senator Grassley (ranking member on Senate Judiciary) is a federal official, and the head of the DEA and the FBI are all federal officials, and none of them has said that 10 years for selling hard drugs is either unfair or excessive. Nor do they believe it.

I think what animates you is your libertarian tendencies, and in particular your view that all drugs should be legalized (and then regulated). But that view is not shared by anything close to a majority of the voters, the Congress or the judiciary.

Nor am I a fan of totally unregulated capitalism (and of course you aren't either). Selling a ten year-old into sexual slavery is also "capitalism," but it's vile, and if I were back in the USAO, and I caught someone at it, they would be looking at considerably more than 10 years. Their "pursuit of happiness" is going to be circumscribed by basic decency.

As to hard and often deadly drugs like heroin, cocaine, meth, PCP and others, overwhelming public opinion, among both liberals and conservatives, also holds that basic decency justifies criminalizing their sale. If you know of a poll saying otherwise, I'd be happy to take a look.

"The issue is whether a choice to engage in an arguably victimless and indisputably small commercial transaction --- after Congress, the Prez, the AG all now say this should NOT require any mandatory prison time --- can and should still demand that the Blewetts spend a full decade in federal prison."

First, this stuff is not a victimless drug, a point I don't view as seriously arguable. Second, the issue in the Blewett case was not whether a MANDATORY ten years violates the Constitution but whether ten years per se -- the actual sentence they were serving -- violates it. As the majority point out, not a single court in this country has held that it does.

3. "Third, I concur that any 8 A ruling that provide relief to anyone other than the worse killers and worst kids is out of the mainstream. But I wonder if you think it a healthy and Framer-respectful 8 A mainstream that on the worst killers and worst kids have any chance to have their 8 A claims taken seriously."

I'm not sure I understand your question, but I'll give it a shot.

It seems to me that the reason 8A review is so "restricted" is that the Framers viewed a term-of-yeas sentence as, while sometimes harsh or even very harsh, not the sort of grotesque thing (e.g., drawing-and-quartering) that was the real historical backdrop of the Framers' thinking (Justice Thomas has said something very insightful about this, but I can't quite put my finger on where he said it).

But as to the Blewett case, it wouldn't make a difference in any event. Given the (correct) Congressional judgment that this drug is very socially destructive, a 10 year sentence for an adult is not an 8A violation NO MATTER HOW DETAILED AND PAINSTAKING THE COURT'S 8A ANALYSIS MIGHT TURN OUT TO BE.

In other words, even if you got the seriousness of CONSIDERATION you want, there is no earthly way you are getting CONCLUSION you want. In a country that criminalizes hard drugs, there is no way that a 10 years prison sentence is so vastly out-of-line as to violate the 8A. "Cruelty" may properly be a judicial concern under the Constitution, but the Frames left mere harshness -- and that's all we have here -- to the legislature.

Posted by: Bill Otis | Dec 5, 2013 9:46:54 AM

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